City of Alexandria, Virginia
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MEMORANDUM
DATE: OCTOBER 3, 2023
TO: THE HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL
THROUGH: JAMES F. PARAJON, CITY MANAGER /s/
FROM: JOANNA ANDERSON, CITY ATTORNEY
DOCKET TITLE:
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Introduction and First Reading. Consideration of Passage of an Ordinance to remove Section 31 (PANHANDLING) of Chapter 1 (GENERAL OFFENSES) of Title 13 (Miscellaneous OFFENSES).
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ISSUE: Should City Council repeal the City of Alexandria’s specified prohibitions on panhandling from the City Code to align with evolving First Amendment law?
RECOMMENDATION: That City Council repeal the City’s specified prohibitions on panhandling on first reading and schedule it for second reading, public hearing and final passage on Saturday, October 14, 2023.
BACKGROUND: While panhandling is largely permissible in the City of Alexandria, the Alexandria City Code currently specifies instances when panhandling is prohibited. Evolving Constitutional law has established that panhandling constitutes protected expression under the First Amendment. See Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013). With limited exceptions, the government can only regulate one form of protected expression differently from other forms of expression if the regulation is narrowly tailored to further a compelling governmental interest. Reed v. Town of Gilbert, 576 U.S. 155 (2015).
The City of Alexandria places certain restrictions on panhandling that are not incorporated into regulations of other similar forms of expression, such as charitable solicitations. Compare Code §§ 13-1-41 (panhandling regulations) with 9-10-1 - 9-10-9 (charitable solicitation regulations). For instance, it is a misdemeanor for individuals to panhandle within 15 feet of an automatic teller machine (“ATM”), id. § 13-1-41(b)(4), but there are no similar restrictions regarding solicitations. Under the Code, it is also a class 3 misdemeanor for a panhandler to block a person’s free passage. Id. § 13-1-41(a)(1)(iii), (b). The Code already includes a blanket prohibition on obstructing the right-of-way that does not carry a criminal penalty. Id. § 5-2-16(a). Thus, while it is illegal for any speakers to obstruct people’s movement in the right-of-way it is only a criminal offense for panhandlers to do so.
Moreover, the majority of the provisions in the City’s panhandling ordinance have large areas of overlap with prohibitions in other Code sections that are generally applicable. For example, under the panhandling ordinance it is illegal to approach, speak to, or follow “a person in a manner that would cause a reasonable person to fear imminent physical injury, or the imminent commission of a criminal act upon the person or upon property in the person's immediate possession.” Id. § 13-1-41(a)(1)(i), (b). However, the Code separately makes it misdemeanors to use abusive language to provoke a breach of the peace, id. § 13-1-1, and to commit a simple assault, id. 13-1-2, which is in part an “overt act intended to place [someone] in fear or apprehension of bodily harm.” Par. v. Commonwealth, 56 Va. App. 324, 329-30 (2010) (internal citations omitted).
DISCUSSION: Repealing the City’s panhandling prohibition will ensure that the City is not engaging in content-based discrimination of speech against panhandlers. Such a repeal would nevertheless leave in place guardrails that are generally applicable to all speakers that are intended to provide safety, peace, and good order. Attached is a comparison chart of prohibitions in the panhandling ordinance, which will be repealed, to generally applicable Code sections that serve similar or overlapping functions.
Note that the City Attorney’s Office is engaging in a holistic review of implications that recent First Amendment cases will have on several City ordinances. Depending on the outcome of that review, there may be a future change to the Code to ensure it is aligned with modern Constitutional law.
FISCAL IMPACT: There will be no fiscal impact.
ATTACHMENTS:
1. Code Comparison Chart
2. Ordinance Cover
3. Ordinance
STAFF:
Lindsay Dubin, Assistant City Attorney